Defamation Law Essay

Defamation law is our legal system’s attempt to reconcile the mutually incompatible interests of freedom of speech and protection of reputation. In the modern” information age”, a third interest must also be recognised – that of the public receiving accurate information from the mass media. This seems like a relatively straightforward concept. In reality, the application and interaction of Australian defamation law only unleashes a barrage of complex questions. This can be emphasised through an analysis of the John Marsden defamation case.

In theory the law of defamation does have an honourable purpose. There has been much discussion about the intention of defamation law and its underlying aims and objectives. The matter has been put to rest by the High Court describing three purposes of granting damages in a claim of defamation: “ The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal (if relevant) business reputation, and vindication of the appellant’s reputation.” However, in practice Australia’s defamation laws do not function well. In fact, it has been claimed that “ its main effect is to hinder free speech and protect powerful people from scrutiny (Martin, 1998, p 107).

Indeed, defamation law is highly controversial. Most defamation actions involve media outlets, and thus tend to be widely reported in the media. News, current affairs and other media coverage tend to focus on a relatively small proportion of the population – politicians, business people, entertainers and so on. As a result, such people are more likely to be defamed. Occasionally they sue. Because they are famous their defamation suits are also reported. Consequently, defamation is probably one of the best-known non-criminal areas of the law.

Nevertheless, the intricacies of defamation law are not well understood. Myths abound; only some have a basis in legal or practical reality. The law is complex and the precise details of its operation can occupy the time of lawyers and courts for weeks. The basic issues involved are more easily comprehended. The tort of defamation prevents publication of material which ‘ tends to injure the personal, professional, trade or business reputation of an individual or a company, to expose them to ridicule or to cause people to avoid them.

Defamation can take the form of either libel or slander. Slander is a defamatory statement in a non-permanent form, usually spoken. Libel is a defamatory statement in permanent form such as writing, printed material, film, video, audio recording, or even sculpture. In media interviews a journalist should be careful to avoid making slanderous statements. In addition, a journalist should be careful that any background materials such as reports, briefing notes or letters do not contain libelous material. For instance, a letter containing allegations of impropriety or poor conduct sent to an individual of whom the allegations are made is not libelous because the communication is private. No other party has been exposed to the statement and, therefore, no defamation has taken place. However, if the letter was provided to a third party such as the media, the subject of the letter could sue for libel.

Gross defamations include allegations of criminality, dishonesty, fraud, untruthfulness, immorality or disloyalty to one’s country. Other lesser defamations include suggestions that a person is unfit for an office lacks qualifications or competence in a trade or profession (e.g. calling a doctor a quack or a real estate person a charlatan), or alleging a person or business is financially unsound.
It is important to recognise that defamation can be made directly (such as calling a person a fraud or a crook) or by imputation. For example, saying a painting is a fake, is by imputation, defamatory of the artist who produced the work even if you never used his or her name, as the statement reflects on the artist’s professionalism.

Defamation law varies considerably between countries. In the US, strong “in the public interest” provisions apply which allow potentially defamatory statements to be made publicly if they pertain to a matter deemed to be in the public interest. Public interest has been interpreted very broadly in the US and there is almost open season on “public officials” and “public figures” in both the US and the UK. Also, truth is a defence against defamation in many countries.

Differences in defamation laws in Australia or Asia or South Africa are relevant to companies in the US, UK and Europe, and vice versa, in today’s ‘Information Age’. With communications through international media and increasingly via the Internet, material can be published globally. Even if your comments are legal in one country, they may be defamatory in another with stricter laws and you could be sued internationally. So understanding the ground rules on defamation law in a number of countries is important for media spokespersons.

Australian defamation law is highly complex with eight different jurisdictions (six States and two Territories) each with its own law and widely differing provisions. As a general rule, Australian laws against defamation are far more stringent and defences are much narrower than those available in the US and other countries. For instance, truth is not a defence on its own in most cases in Australia (Sawer, 1968, p. 18).

In most Australian jurisdictions defamation law is a mixture of statute and common law. The law is far from uniform from State to State. In 1979 the Australian Law Reform Commission recommended numerous changes to the law of defamation including introducing a uniform defamation law for all of Australia. Despite attempts to bring such law into effect, this has not occurred nationally, although three states (New South Wales, Victoria and Queensland) adopted uniform laws in 1992.

Because of the lack of uniformity between States and territories in Australia, a statement published or broadcast by national media can be the subject of legal action in any one or all of the jurisdictions. Potential suitors have a choice of jurisdictions and can bring an action in the one that best suits their case. Thus, a statement made in an interview in Sydney could be the subject of a defamation action in Western Australia or Queensland.

The Australian Government has moved to reform its complex defamation laws to provide uniformity and provisions more in line with other modern industrialised countries, but this has proved to be a long and laborious process due to Federal-State politics and significant differences of opinion between legal experts, media proprietors and social reformers. In the meantime, Australian defamation laws are, in the words of Brian Martin, an “unholy mess” and any spokesperson talking to the media needs to be wary of making defamatory statements which could lead to legal action resulting in significant damages settlements. (Martin, 1998, p. 23)

The question of whether Australian defamation law performs its role well can be answered through the application of the John Marsden defamation case. On Wednesday 27, 2001, Solicitor John Marsden was awarded $500,000 in damages after winning Australia’s longest running defamation case, in the New South Wales Supreme Court. The finding for the 59yearold former Law Society President and Police Board member came after a jury found in 1999 Marsden had been defamed by two Seven Network broadcasts which claimed he had sex with underage boys. The case against Channel Seven centered on two broadcasts on the “Witness” program that suggested that the flamboyant Mr.Marsden had paid under-aged boys for sex.

Justice Levine ruled Mr. Marsden had a good and settled reputation before the publication of the false imputations and awarded him $525,000. The judge said he was satisfied on the balance of probabilities that the alleged events did not occur, adding Channel Seven was acted with malice. Justice David Levine found those allegations were “grave, false, defamatory … and actuated by malice”.

The victory clearly came at a staggering price, after 214 days of hearings, which included graphic descriptions of gay sex acts. Mr. Marsden said the case had taken over six years and cost him $6 million in legal expenses. John Marsden admitted after the judgment that he would be “forever tainted by the false claim” and that “the result had totally vindicated his stand against the allegations”. Alas, according to Mr. Marsden, his victory had come at a high price and his reputation would be forever tainted. Mr. Marsden said he despaired for the future of law in Australia and the way in which “socalled justice is administered”.

“Although I have won I have lost,” he said.
“But more importantly society has lost. This case should serve as warning to every person here today, to every family and to every politician that the price of justice in Australia today has become so expensive that most people simply cannot afford it.”

There are several fundamental flaws in the Australian legal system, including cost, selective application and complexity. Firstly, cost is a relevant issue when analysing the problems associated with defamation law. If sued for defamation, one could end up paying tens of thousands of dollars in legal fees, even in the event of winning a case. The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. Cases can go on for years, only creating enormous legal costs which could then lead to appeals. According to Brian Martin, author of “Information liberation”, the result is that defamation law is often used by the rich and powerful to deter criticisms.”

Brian Martin states that the “ power behind defamation law is corrupting, which explains why it is so difficult to make even minor reforms to the law to benefit those with little power or wealth.” In Australia, the newspapers and broadcasters are presently large corporations with substantial legal services at their disposal. Cyberspace allows individuals wide publication to a national and even international audience. The vast majority of these people have neither access to lawyers skilled in navigating the intricacies of such laws nor resources to compensate a person who is harmed by their statements. In short, only those wit money, and lots of it, need apply.

The unpredictability, complexity, and slowness of the application of Australian defamation law also raises a host of questions about the effectiveness of defamation law. People say and write defamatory things all the time, but only very few are threatened with lawsuits. Sometimes gross libels pass unchallenged while comparatively innocuous comments lead to major court actions. The complexity of defamation law is also a hindrance to its effectiveness. It is so complex that most writers prefer to be safe than sorry. They might refrain from publishing things that are quite appropriate, and thus inhibit the right of free speech. In addition, those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities of defamation law.

The words of John Marsden himself exemplify the complexities of defamation law. Although Mr.Marsden won his case, he came out clearly the loser as well. If defamation law is intended to protect people from having their reputations unfairly sullied, it did not perform its role in this case. One must question the freedom the media, which allows the press to irreparably annihilate an individual’s reputation without proper investigation. However, the law did recognise that Channel Seven was in the wrong therefore it must be acknowledged that in a certain respect it did vindicate John Marsden. This is the paradox of Australian defamation law.

Many people agree that Australian defamation law should be changed. However few agree on how it should be changed. It is not surprising that such a vital and controversial area of law should continue to invite such scrutiny. The balance, which it strikes between such important competing interests; the fundamental right of freedom of speech and the protection of a person’s reputation, must continue to be reassessed.
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